A Phase I Site Assessment is used primarily to investigate commercial real estate for environmental conditions. The American Society for Testing and Materials (ASTM) International provides a Standard Practice for environmental professionals undertaking a Phase I Site Assessment. Last fall, ASTM International published a revised version of the Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process or “ASTM E1527-13.”
The ASTM standards are highly relevant under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) because CERCLA exempts certain parties, such as a bona fide prospective purchaser or a contiguous property owner, from liability. To qualify for one of these exemptions, a party must show that it has conducted “all appropriate inquiries” into environmental conditions at the property. Currently, both the older version and the newer version of ASTM E1527 are compliant with the “all appropriate inquiries (AAI)” rule under CERLCA. 78 Fed. Reg. 79319-01 (Dec. 20, 2013). Thus, a party seeking to establish an exemption under CERCLA has conducted the required all appropriate inquiry if it undertakes a Phase I Environmental Site Assessment that is consistent with the ASTM standard practice.
Although ASTM E1527-13 is directed at environmental professionals, the standard is also important for lawyers and other professionals who are tasked with reviewing and understanding the consequences of a Phase I Site Assessment. The new ASTM E1527-13 makes several major changes to the old version, including the addition of a new category of environmental conditions titled “Controlled Recognized Environmental Condition.” It also addresses vapor intrusion specifically, a topic which was not addressed in E1527-05. In addition, the new standard focuses heavily on how to adequately review site documents.
On Tuesday, June 17th, the United States Environmental Protection Agency (USEPA) issued a proposed rule that would revoke USEPA’s acceptance of the older standard, ASTM E1527-05, in favor of the newer version, ASTM E1527-13. 79 Fed. Reg. 34480 (June 17, 2014). This is a change from USEPA’s prior position stating that it would accept both versions of the standard. USEPA states that it is issuing this proposed rule because it wants “to reduce any confusion.” 79 Fed. Reg. 34482. The proposed rule would become effective one year after publication of the final rule, and would not apply retroactively. As a result, Phase I Site Assessments undertaken pursuant to ASTM E1527-05 will still be compliant with the AAI rule until one year after the final rule is published.
The revised ASTM E1527-13 is available for purchase at http://www.astm.org/Standards/E1527.htm.